ON TREND: EU POLICY MAKING IN BRUSSELS

Posted by Debbie Rosenbaum on November 30, 2011

Reprinted from La A La Mode, DLA Piper's Fashion, Retail and Design E-zine

by Emma Greenow (Brussels)
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With what can seem to be an overwhelming increase in the quantity and complexity of EU regulation facing the fashion industry, understanding and taking action in this area can seem as if you are navigating a tangled web of issues and stakeholders.
The recent EU regulatory agenda has included policy reviews in relation to the intellectual property framework, the Digital Agenda, Online Behavioural Advertising, Consumer Rights and redress amongst others. Each of these developments has a direct impact on business activities in the fashion industry in Europe and, for this reason, interaction from rightsholders into the creation of the regulatory framework is essential. 
In recognition of this fact, fashion houses and brands are investing heavily in strategic discussions at EU level in order to directly provide input into many of the forthcoming changes. Through enhanced regularised contact with legislators and the provision of timely and helpful advice, all stakeholders are trying to move towards more workable and less cumbersome regulatory obligations for businesses.
An effective example of the need and value of increased dialogue was shown in the drafting of the recent recommendations for Online Behavioural Advertising, where industry, consumer groups and legislators worked together through dialogue to develop a series of best practice principles which all parties supported.  As a result of this process, the contributors may well have diverted a further regulatory burden for all stakeholders.
Following the changes brought about by the Lisbon Treaty, it is vital for all fashion industry participants to engage and input into all 3 key EU institutions, the European Commission, the European Parliament and the Council of the European Union. 
Legislative advocacy by rightsholders can take many forms - from the traditional methods such as meet and greet sessions with key stakeholders, press releases and local media, to the more sophisticated and targeted advocacy including social media campaigns, video messaging and awareness raising. All methods have definite advantages however it is key to know when to link each method into your activities. 
The face of the regulatory framework for the fashion industry is changing rapidly and this trend is likely to continue into 2012 - what is of key importance is your inclusion and input into these forthcoming discussions.

by Emma Greenow (Brussels)

With what can seem to be an overwhelming increase in the quantity and complexity of EU regulation facing the fashion industry, understanding and taking action in this area can seem as if you are navigating a tangled web of issues and stakeholders.

The recent EU regulatory agenda has included policy reviews in relation to the intellectual property framework, the Digital Agenda, Online Behavioural Advertising, Consumer Rights and redress amongst others. Each of these developments has a direct impact on business activities in the fashion industry in Europe and, for this reason, interaction from rightsholders into the creation of the regulatory framework is essential.

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Law à La Mode - Autumn Edition

Posted by Debbie Rosenbaum on November 28, 2011

LALM fall cover.bmpThe Autumn Edition of Law à la Mode is now available online: click here to view the e-magazine.

With a Belgian editorial team for this edition, we wanted to give a flavour of an up and coming fashion capital in the heart of Europe. With a mix of cultures from Europe and beyond, Belgium is fast becoming a key location for new design and innovation in fashion. More than just moules, frites and beer, we are fortunate enough to have some of the most renowned fashion academies in Antwerp and Brussels generating internationally known designers such as Dries Van Noten, Ann Demeulemeester, Martin Margiela and Olivier Theyskens. 
As Belgium is also the hub of EU policy development and creation, we share with you our thoughts on the trends around policy making - steering you through the agenda and potential activity (page 4).
Sustainability being the buzz word of the moment in relation to product development, we have an insight from our UK team on the interplay between the sustainability debate and the fashion industry (page 5).
In the wake of the global financial crisis, this season our US team evaluates what a shift in the wider economic market has meant for franchising activities in the US (pages 6-7), and we discuss the impact of the climate on the UK retail market (pages 12-13).
With more of a focus than ever on the ability to effectively market products to consumers, our experts analyse the finer details of production techniques for cosmetic advertising (page 8) and present our new 10 commandments for online retailers originating from the EU (pages 10-11). We also look into the new EU Regulation on textile labelling, which will impact on all designers (page 9), and a recent CJEU judgement focussed on the liability of online market places where users offer infringing goods (page 14). 
In our regular "A word from the Industry's Mouth" we share an in-depth insight from a leading Chinese brand hoping to broaden its global fashion image (pages 15-16). And last, but not least, our series devoted to fashion and social media in which our US team evaluates the developing role of social media in the fashion retail space (pages 17-18).
If you have any comments please get in touch with the FRD Group via our email: fashion@dlapiper.com
We hope that you enjoy browsing through this season's collection of articles.

With a Belgian editorial team for this edition, we wanted to give a flavour of an up and coming fashion capital in the heart of Europe. With a mix of cultures from Europe and beyond, Belgium is fast becoming a key location for new design and innovation in fashion. More than just moules, frites and beer, we are fortunate enough to have some of the most renowned fashion academies in Antwerp and Brussels generating internationally known designers such as Dries Van Noten, Ann Demeulemeester, Martin Margiela and Olivier Theyskens. 

As Belgium is also the hub of EU policy development and creation, we share with you our thoughts on the trends around policy making - steering you through the agenda and potential activity (page 4).

Sustainability being the buzz word of the moment in relation to product development, we have an insight from our UK team on the interplay between the sustainability debate and the fashion industry (page 5).

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UK signs agreement on intellectual property and growth with Mexico

Posted by Duncan Calow on November 24, 2011

Reposted from DLA Piper's Media & Sport Group Bulletin

Editorial Team: Nick Fitzpatrick, Duncan Calow and Patrick Mitchell

The UK Intellectual Property Office ("IPO") has signed a landmark agreement with the Mexican Institute of Industrial Property ("IMPI") to improve cooperation between the two nations on issues of copyright, patents, trade marks and designs.
 
The agreement aims to support the growth of UK businesses operating in Mexico and follows recommendations made in the Hargreaves Report that the UK should continue to pursue international interests in intellectual property.
UK Minister for Intellectual Property, Baroness Wilcox, said: "in the midst of a globalised era, it is imperative for Governments to jointly collaborate on common understandings such as innovation. We are certain that this partnership will enrich our IP systems, and will benefit IP stakeholders in both economies".

The UK Intellectual Property Office ("IPO") has signed a landmark agreement with the Mexican Institute of Industrial Property ("IMPI") to improve cooperation between the two nations on issues of copyright, patents, trade marks and designs.

The agreement aims to support the growth of UK businesses operating in Mexico and follows recommendations made in the Hargreaves Report that the UK should continue to pursue international interests in intellectual property.

UK Minister for Intellectual Property, Baroness Wilcox, said: "in the midst of a globalised era, it is imperative for Governments to jointly collaborate on common understandings such as innovation. We are certain that this partnership will enrich our IP systems, and will benefit IP stakeholders in both economies".

Ofcom clears Al Jazeera over "Palestine Papers"

Posted by Patrick Mitchell on November 21, 2011

Reposted from DLA Piper's Media & Sport Group Bulletin

Editorial Team: Nick Fitzpatrick, Duncan Calow and Patrick Mitchell

Ofcom has cleared Al Jazeera English channel ("Al Jazeera") for its broadcast of "The Palestine Papers" after a complaint of unfair treatment by the Chief Negotiator of the Palestine Liberation Organisation ("PLO").
"The Palestine Papers", a four-part documentary series broadcast on Al Jazeera, examined "leaked" diplomatic documents relating to the Middle East peace process. The series criticised the role played by Dr Saeb Erakat, the Chief Negotiator of the PLO, a number of times. This prompted Dr Erakat to complain of unfair treatment and unwarranted infringement of privacy on behalf of both himself and the PLO.
The complaint, amongst other things, argued that important contextual information was deliberately omitted so that viewers could not properly understand the subjects discussed during the negotiation scenes and that the programme broadcast details of confidential documents that were stolen from Dr Erakat's office in breach of confidentiality and privacy.
In response to these particular complaints, Al Jazeera stated that the programme makers took reasonable care and carried out considerable research to ensure that all material facts were presented fairly. Al Jazeera also argued that, in any case, any alleged breach was warranted as the programme dealt with public affairs of great political and international importance and there could be no doubt about the importance of investigating and criticising the decisions made by Dr Erakat and other senior negotiators. Therefore, according to Al Jazeera, no consent was required from anyone within the PLO prior to broadcast.
Ofcom found that material facts in relation to the negotiations were not presented or omitted in a way that led to unfair treatment of Dr Erakat and the infringement of privacy in relation to obtaining and using the confidential document was warranted due to the significant public interest in the issues covered by the documentary series.

Ofcom has cleared Al Jazeera English channel ("Al Jazeera") for its broadcast of "The Palestine Papers" after a complaint of unfair treatment by the Chief Negotiator of the Palestine Liberation Organisation ("PLO").

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Libel reform committee proposes sweeping changes to the UK's libel laws

Posted by Nick Fitzpatrick on November 18, 2011

Reposted from DLA Piper's Media & Sport Group Bulletin

Editorial Team: Nick Fitzpatrick, Duncan Calow and Patrick Mitchell

A Joint Committee of MPs and peers from the House of Commons and House of Lords ("the Committee") has issued a report on the Draft Defamation Bill ("the Bill"), approving many of the Government's proposals but also recommending further changes that should be made to libel laws.

The unanimously-agreed report was published on 19 October 2011. In considering the Bill, which was published in March 2011 (please see the article in our April 2011 issue of Media Intelligence here), the Committee established the following core principles to act as a guide in developing their recommendations:

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BT and TalkTalk granted leave to appeal Digital Economy Act decision

Posted by Duncan Calow on November 17, 2011

Reposted from DLA Piper's Media & Sport Group Bulletin

Editorial Team: Nick Fitzpatrick, Duncan Calow and Patrick Mitchell

Internet Service Providers ("ISPs") BT and TalkTalk have been granted permission to appeal against the High Court's April 2011 ruling in their judicial review proceedings in relation to the Digital Economy Act.

The Digital Economy Act ("the Act") was passed by the Government in April 2010 with a view to protect creative industries such as music and film-making by introducing measures to tackle online copyright infringement. Under the Act, ISPs would be compelled to take an active role against pirates by, for example, sending out warning letters to alleged illegal downloaders.
BT and TalkTalk, two of the UK's largest ISPs, brought a judicial review of the Act in April 2011, claiming that the measures to tackle online copyright infringement were not only disproportionate but were also not compliant with EU law. However, the High Court ruled in favour of the Government, recognising the measures as both lawful and proportionate (please see the article in our April 2011 issue of Media Intelligence here).
After failing to obtain permission to appeal against the decision in June 2011, BT and TalkTalk finally succeeded on 7 October 2011. Lord Justice Lewison granted leave to appeal on four of the five grounds addressed in the initial case. The ISPs argue that the Act is not compliant with the following European Directives: the Technical Standards Directive, the Authorisation Directive, the E-Commerce Directive and the Privacy and Electronic Communications Directive. The ISPs accepted the High Court's opinion that there is a very high threshold of proving disproportionality and therefore have not sought appeal on their original claim that the act "represents a disproportionate interference with the rights of internet service providers, subscribers and internet users and with the concept of freedom of expression".
The hearing at the Court of Appeal is likely to be held next year, meaning the full implementation of the Act is likely to be further delayed. BT's challenge to the Act coincides with separate action taken by Hollywood studios under the Copyright, Designs and Patents Act 1988, under which BT has been ordered to block access to a website that facilitates online infringement of copyright (please refer to the next item in this newsletter here).

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"Goo Goo" and "Gaga"

Posted by Patrick Mitchell on November 16, 2011

Reposted from DLA Piper's Media & Sport Group Bulletin

Editorial Team: Nick Fitzpatrick, Duncan Calow and Patrick Mitchell

Ate My Heart Inc v (1) Mind Candy Ltd (2) Moshi Music Ltd (2011) - interim junction granted against online children's game company and its subsidiary
The High Court has granted an interim injunction preventing the promotion of an animated character known as "Lady Goo Goo" and its associated song due to the risk that the public would confuse it with the music artist Lady Gaga and her associated trademark.
The High Court proceedings were brought by the applicant following the attempted release of "The Moshi Song" by Moshi Music, a new division of the children's social networking site Moshi Monsters. The song had already been posted on YouTube and Moshi Music planned to release it as a single on iTunes. The online computer game also features an animated cartoon baby known as "Lady Goo Goo" which was arguably a visible representative of Lady Gaga. The applicant argued that there had been infringement of its LADY GAGA trade mark.
The applicant argued that there was a risk that consumers might consider "Lady Goo Goo" to have originated from the same source as, or a source economically linked to, Lady Gaga. This argument was strengthened by the fact that users had published blog comments suggesting they were confused as to whether there was a connection.
The factors relevant for the assessment as to whether or not there was a risk of confusion were as follows:

Ate My Heart Inc v (1) Mind Candy Ltd (2) Moshi Music Ltd (2011) - interim junction granted against online children's game company and its subsidiary

The High Court has granted an interim injunction preventing the promotion of an animated character known as "Lady Goo Goo" and its associated song due to the risk that the public would confuse it with the music artist Lady Gaga and her associated trademark.

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FTC Settlement Provides Guidance on Substantiation for Product Health and Fitness Claims

Posted by Scott Pink on November 15, 2011

The Federal Trade Commission (FTC) recently entered a settlement order with Reebok International Ltd. to resolve charges that the company deceptively advertised that its "toning shoes" would provide extra tone and strength to leg and buttock muscles. The settlement arises out of an action the FTC brought in the United States District Court for the Northern District of Ohio alleging the Reebok engaged in deceptive acts or practices and false advertisements in violation of Sections 5(a) and 12 of the FTC Act. Among other things, the FTC took issue with a TV ad in which a fit woman explains to the audience the benefits of the toning shoe, pointing to a chart that showing that the shoes are proven to strengthen hamstrings and calves up to 11 percent and tone the buttocks up to "28 more than regular sneakers, just by walking." The FTC also contended that the use of the word "tone" in the product name was deceptive. The FTC's contention was that these claims were deceptive because they not supported by adequate substantiation.

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FTC Settlement Requires Detailed Disclosures Regarding Use of Flash Cookies

Posted by Scott Pink on November 13, 2011

Cookies have long been a key means for online companies to track a consumer's web browsing activities. Most browsers allow the consumer to block conventional cookies from accessing their computer. To get around this obstacle, marketers have increasingly employed "flash cookies" , which use a different approach for storing a consumers online behavior and are not as easily blocked as conventional cookies. The Federal Trade Commission (FTC) has voiced increasing concern about the use of tools by companies to engage in online behavioral advertising without the consumer's knowledge or consent. This has led to the issuance of self-regulatory guidelines as well as increasing scrutiny of the use of online advertising tools by advertisers.

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EU: Commission Report on the Digital Agenda: social networks can do much more to protect minors' privacy

Posted by Nick Fitzpatrick on November 10, 2011

Reposted from DLA Piper's Media & Sport Group Bulletin

Editorial Team: Nick Fitzpatrick, Duncan Calow and Patrick Mitchell

Following a report focussed on the implementation of the "Safer Social Networking Principles of the EU" the European Commission has found that social networking sites are not doing enough to protect minors' privacy.

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Google Plus Profiles Now Open to Brands

Posted by Debbie Rosenbaum on November 07, 2011

It goes without saying that companies are increasingly using social media to reach new customers and to strengthen relationships with loyal customers.  As you may already know, Google opened its social media platform, Google+, to businesses and brand owners today.  A Google+ profile is similar to a Facebook Fan page, and we want to encourage you to set up an official page to both promote and protect your brand.   You can open your company's Plus page at http://plus.google.com/pages/create.

As always, let us know if you have any questions or if we can be helpful in any way.

Occupy Wall Street Trademark

Posted by Radiance W. Harris on November 04, 2011

Occupy Wall Street has filed a U.S. federal application for the trademark OCCUPY WALL STREET (U.S. App. No. 85454550) for use in connection with clothing and bags, periodicals and newsletters, and "a web site featuring photographic, audio, video and prose presentations featuring educational and entertaining materials relating to Occupy Wall Street and the Occupy Movement". On the same date, Fer-Eng Investments, LLC also filed an intent-to-use application for the trademark OCCUPY WALL STREET covering clothing and bags (U.S. App. No. 85454831). 

For more information: http://money.cnn.com/2011/10/31/news/economy/occupy_wall_street_trademark/index.htm